In an age of exponentially higher rates of media coverage and access to personal information through the internet, it is almost impossible to maintain anonymity. Unfortunately, the Australian legal system is no exception. This proves particularly distressing for many historical abuse victims when pursuing a claim.
For those who have endured child sexual abuse at the hands of an institution, seeking compensation oftentimes re-opens wounds of trauma, shame and fear, perhaps deriving from the chance of being publicly identified as a child sexual abuse survivor through the legal process. In Australian court systems, pieces of information or records can become available to the public. As such, a common question for many survivors of child sexual abuse when considering seeking compensation is whether they can keep certain information private whilst conducting legal proceedings.
Some do not want their peers, friends, loved ones or family members to know about the abuse, while others feel concerned for their safety at the prospect of highly delicate information regarding their abuse being made public. Whatever the circumstances, a Suppression Order has the capability to mitigate these fears and protect the victim from public identification in legal proceedings.
What is a Suppression Order?
You may have heard the term ‘Suppression Order’, or perhaps ‘Pseudonym Order’. In Australia, a Suppression Order is a legal mechanism that prohibits the publication or disclosure of information about an individual involved in a legal proceeding. By gaining a Suppression Order, your identity is kept concealed from any public aspect of your case, which is especially important for abuse claims where very real concerns about safety, reputation or personal circumstances are prevalent.
How do I obtain a Suppression Order?
At a first Directions Hearing in New South Wales, there will be an opportunity for you and your legal team to seek Suppression Orders pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW). Most commonly, Suppression Orders are gained for the effect of ensuring a victim’s name is anonymised throughout the entirety of all proceedings, but other pieces of information can be concealed if justifiable.
What if I want to obtain an order in another state besides New South Wales?
Each state in Australia varies in their jurisdictional legislation related to obtaining a Suppression Order (see below for a list of the legislation for each state jurisdiction). Some states are empowered by federal legislation, whilst others have their own state legislation, and many also reference authoritative common law principles. If you would like any more information with regards to the legislation of your state, we would be happy to answer any queries.
| New South Wales | Court Suppression and Non-Publication Orders Act 2010 (NSW). |
| Victoria | Open Courts Act 2013 |
| Queensland | Judicial Proceedings Reports Act 1958 |
| Western Australia | Suppression Orders Act 2012 |
| South Australia | Evidence Act 1929 & other common law principles |
| Tasmania | Evidence Act 1929 & other common law principles |
| Australian Capital Territory | Court Procedure Rules 2006 & common law principles |
| Northern Territory | Criminal Code Act & common law principles |
What are the benefits of using this order in my claim?
Suppression Orders can be highly beneficial for historical abuse claims in many facets. In many historical abuse claims victims and survivors may prefer to entirely, or in part, remain anonymous for the sake of avoiding further trauma surfacing and protecting their privacy for a highly sensitive part of their lives. A Suppression Order shields this exposure and may prevent further strife.
Utilising a Suppression Order may also prevent implications occurring from external cases or wider publicity. It is common for a historical abuse claim to be conducted alongside a criminal investigation, perhaps with the same victim, abuser or institution involved. Utilising a Suppression Order may prevent the release of a case’s information from prejudicing other proceedings. If you have public notoriety, or anything related to your abuse has received media coverage, suppression order ensures that potential jurors or witnesses are not influenced by pre-trial publicity, which could impact the fairness of the trial.
Suppression orders can make all the difference in minimising the emotional toll that historical abuse claims can take on an individual. The order ultimately relieves victims from having to exacerbate what can already be an incredibly emotional, stressful and traumatising process. After all, debunking and educating potential claimants on this avenue could be the deciding factor between pursuing or not pursuing justice. Chamberlains Law Firm is not only here to aid you in navigating and achieving justice in this often complex and delicate area of law, but our experienced team of lawyers can do so with compassion and providing you individualised support throughout the process.
Contact our abuse compensation claims team to schedule a confidential consultation and take the first step towards healing and recovery.
The hard part is over. You have taken your idea to market. Your product is gaining traction. Then here comes the harder part – the company needs more capital to fund its new product development, grow operations, and expand its market reach. This article outlines key capital raising structures, as well as the main features and considerations for selecting the right capital raising method for your company.
Overarchingly, a company can raise capital by way of the following methods:
In any of the above circumstances, the capital raise can be done within the company internally (as between the shareholders / founders) or externally (by onboarding new investors). Whilst accepting external investment could present greater funding potential to a growing company, the significant consideration affecting founders with respect to this decision is the involvement of a third party into the conduct of the company’s affairs, particularly where the external capital brings about dilutionary effect to their shareholding and decision-making dynamics in the company.
Equity raising
A company can raise capital by issuing more equity. This involves the company issuing more shares and selling those shares in exchange for capital funding (which can be sold to shareholders exercising their pre-emptive rights or to external investors).
The primary benefit to an equity raise is that there are generally no repayment obligations on the company for capital received in exchange for shares, given that the treatment of the company’s receipt of that capital is characterised as consideration for share subscription. Relevantly, by becoming a shareholder, an investor is effectively buying into a proportion of the profits and assets of the company as represented by their shares. Thus, whilst the investor risks not receiving any return of capital investment that it has contributed in the company, it is entitled to dividends declared in the company and the division of surplus company assets in a wind up of the company in accordance with their shareholding proportion.
In a founder’s perspective, an equity raise poses the disadvantage of diluting their shareholding. Importantly, the increase of newly issued shares in the company results in the increase of the total number of issued shares in the company, which dilutes all shareholding in the company prior to the equity round. Consequently, earnings-per-share is also reduced, given that dividends in the company is now divided across a larger shareholding base. A further consideration affecting most founders is also the impact to the company’s governance and decision-making dynamics as a result of new shareholder(s) being onboarded into the company.
Debt financing
A company can also raise capital by way of debt, which can be taken out from a shareholder (via shareholder’s loan) or by third party loans, such as a financial institution. The main disadvantage to debt financing is the difficulty for early-stage companies to obtain a third-party loan, and where such a loan is secured, fixed repayment obligations and interests would apply on the company. Debt financing could thereby be constraining upon a company’s cashflow, particularly where the company does not yet have a stabilised performance. In addition, third party lenders can also impose onerous lending terms upon the company which can restrict the conduct of the company’s affairs generally.
Notwithstanding the above, the key benefit to debt financing is that it enables founders to preserve their shareholding in the company and to retain control over their own company without onboarding new shareholders.
Hybrid financing
Hybrid financing involves raising capital by using a versatile instrument which combines both equity and debt financing elements. The primary instrument of hybrid financing can be equity-based or debt-based, with the hybrid element to materialise in different forms under the terms of the relevant instrument. Each of the two (2) common examples of equity-based and debt-based hybrid instruments are as follows.
Preference shares
An equity-based hybrid financing instrument is preference shares. This method is effectively an equity raise, whereby new preference class shares are issued in the company and sold to investors. However, the company has obligations to repay capital to preference class shareholders pursuant to the rights attaching to their preference shares. In addition to repayment of capital, preference class share rights can also confer other priority rights to preference class shareholders, e.g. priority over dividend distributions and division of surplus company assets on a wind up of the company in accordance with their shareholding proportions. Given that this method provides investors with “best of both worlds” approach, this method is typically preferred by sophisticated investors (e.g. venture capital funds) to confer greater protection over their investment.
Convertible notes
Convertible note is effectively a debt financing instrument which contains equity conversion terms. Initially, a convertible note is recorded as a loan between a company and an investor. However, the loan can be converted to share subscription in the company on the occurrence of pre-determined trigger events (this could be such as when the company calls for a new capital round, or upon the company achieving a specific milestone, or simply on the occurrence of a maturity date). A convertible note can be drafted to enable investors to lock in a conversion price or valuation cap under the convertible note’s terms, which provides a benefit to investors to lock in or cap the subscription price upon which the loan that they have provided would be applied as consideration for shares prior to further up-rounds in the company, thus enabling an investor to lock in a lower valuation to company’s shares. Alternately, a convertible note can also provide flexibility for that investor to not elect for share conversion, in which case the company would be obliged to repay the investor on basis of the loan repayment terms under the convertible note.
Chamberlains has assisted many growth-stage businesses to undertake capital raisings under various structures. Please speak to our Corporate and Commercial Team if you require any assistance or advice with respect to your capital raising options, processes and implementations.
The recent murder-suicide tragedy that unfolded in the suburbs of Perth in late July 2023 serve as a reminder of our human frailties and the devastating consequences that can result from deep seated pain and trauma. Something went terribly wrong in this story and now a young child is left orphaned. What happens to this child?
Hopefully he has a loving and supporting extended family to look after him but as so often happens, children are, for unfortunate reasons placed into the care of institutions to ensure their future safety and wellbeing. The ‘system’ is often targeted as the cause of such devastating events occurring in the community. It helps us to try and make sense of why these events occurred in the first place and we are constantly looking to shift blame elsewhere.
Chamberlains represent clients who have experienced unimaginable horrors as children abused in the care of those ‘systems’ that are supposed to protect them. Sadly, we have discovered in recent years since the ‘Royal Commission into institutional responses to child sexual abuse’ that the system has let down our children.
As time goes on, we discover more revelations of widespread abuse in institutions that are there to protect our young people from harm and who are often already psychologically vulnerable. This has been highlighted at Don Dale juvenile facility in the Northern Territory and the abuses occurring here in WA at our juvenile detention facilities, such as Banksia Hill Detention Centre and other juvenile justice facilities.
There is no excuse for violence in our communities and we have the right to feel safe however we ought to keep in mind that children’s behaviour in acting out is a response to feeling unloved, unsafe, unvalued and unable to necessarily articulate their feelings and thoughts in the way that adults can.
At Chamberlains, our abuse team understands the vulnerability of our clients and the devastating impacts of abuse that often ripple through the wider community.
We help survivors of institutional child sexual abuse to seek accountability from the institutions that have failed them.
HMAS Leeuwin is a former Royal Australian Navy shore base in Freemantle, operating between 1960 and 1984 until it passed hands to the Australian Army as Leeuwin Barracks, and was eventually announced for sale by the Australian Government in 2015. During the period between 1960 to 1984 HMAS Leeuwin functioned as a training establishment for junior Navy recruits, aged between 15 and 16.
Events at the HMAS Leeuwin were substantively the subject of the both the Royal Commission into Institutional Responses to Child Sexual Abuse, and the Defence Abuse Response Taskforce (DART) examined the proliferation of physical and sexual abuse of child recruits at HMAS Leeuwin from 1960 to 1984 and the response from the Commonwealth Department of Defence to the allegations. The experiences and extent of abuse were documented in Case Study 40 of the Royal Commission, and its findings can be found here. The DART findings can be found here.
The Royal Commission reported that “Leeuwin had been the scene for unorganised and repetitive acts of bullying, violence, degradation and petty crime during most of the years of its existence”. This abuse included the practice of “bastardisation”, where a junior recruit would be held down whilst boot polish, toothpaste or another substance was speared on their genitals or anal area. Reporting of the abuse was reprimanded, and the junior recruits that did report this abuse to staff were dishonourably discharged, or threatened with a dishonourable discharge, being told that the abuse was a “rite of passage”. Further, commissioners have insisted that senior staff members knew and tolerated such abuse as a product of the Leeuwin’s institutional environment that enabled the abuse to continuously occur. The Royal Commission arrived at a finding that Leeuwin’s system of management was ineffective in preventing and responding to child sexual abuse, ultimately providing that the Navy failed its’ duty of care to junior recruits.
The DART report looked further at the scope of abuse, especially at HMAs Leeuwin. Of the matters included within the report, some 10% identified HMAS Leeuwin as the location of the incident relevant to them, and a further one third of persons making a report outside of the inquiry’s reporting period who identified the location of their report identified the HMAS Leeuwin as that location. The report concluded that due to the nature of the abuse and injury to the survivors, it is “likely that other subjects of past abuse will continue to come forward when they feel able to do so, for many years into the future”[1].
As the survivors of abuse continue to come forward to share their experiences of maltreatment at the Leeuwin, it is a poignant time to consider the scale of damage that these injuries carry, made clear by how deep the wounds are decades after the fact.
Chamberlains Law Firm represents clients for historical sexual abuse claims against both institutions and individuals. The hope in bringing a claim for childhood historical abuse is to hold the individual or institution accountable and provide financial compensation to the survivor for the harm caused. Please get in touch with our experienced team in this area for a confidential no-obligation initial chat.
This article was written with the assistance of Isaac Simpson.
BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431
The plaintiff was sexually abused by Paul Hayes (“the perpetrator”), a scout leader and assistant scout leader, between 1979 and 1982. The defendant admits the plaintiff was repeatedly sexually abused by the perpetrator between 1979 and 1982, as the perpetrator pled guilty to 24 charges relating to sexual abuse of the plaintiff. The perpetrator is still alive, and willing to give evidence in the proceeding.
The plaintiff pled that the defendant owed him a duty to take reasonable care to protect him from sexual abuse by Scout Leaders or Assistant Scout Leaders in their conduct towards the child members of the Scout Group of which they were Leaders. The defendant claims that all potential witnesses to the defendant’s knowledge of the risk of harm, and the conduct of its activities amounting to a breach of duty to the plaintiff, are either dead, suffer from dementia or other health concerns that mean they are unavailable to give evidence.
The perpetrator was available to give evidence, however, was not considered independent as he would attempt to shift moral blame from himself to the Scout Group. The perpetrators evidence contains elements that are therefore highly prejudicial to the defendant. There is no contrary evidence where alternative findings could be made as to how the perpetrator was interviewed, supervised and monitored by the defendant.
The Court decided that because:
Justice Garling in the NSW Supreme Court granted the defendant a permanent stay of proceedings and all costs.
Vicarious Liability
The plaintiff pled that the defendant was vicariously liable for the sexual abuse committed by the perpetrator while an Assistant Scout Leader and Scout Leader. Civil Liabilities Act (2002) states that an organisation is vicariously liable for the child abuse perpetrated by their employees, or those akin to an employee.
The defendants deny that the perpetrator was an employee or akin to an employee of the Scout Group, and was rather a volunteer, and therefore the Scout Group is not vicariously liable.
For the Court to find is the perpetrator was akin to an employee of the Scout Group, it must consider a number of factors. The particular role that was assigned to the perpetrator by the Scout Group could not be shown in evidence. There is no evidence, such as documents or reliable witnesses, that could describe the role in which the perpetrator was assigned by the Scout Association. Possible witnesses, such as the perpetrators direct supervisors, are either dead or incapacitated to such a degree that they could not give evidence. Therefore, a permanent stay was granted as the defendant could not reasonably defend the claim that the perpetrator was akin to an employee.
Permanent stay and limitation period of child abuse claims
Garling J emphasised that a permanent stay of proceedings in matters relating to child abuse is not incompatible with the legislative decision to remove the limitation period of child abuse claims that followed the Royal Commission. The Limitation Act 1969 (NSW) s6A(6) states that the removal of limitation on child abuse claims does not limit a Court’s power, including the power to grant a permanent stay of proceedings. Furthermore, a limitation period that permits or precludes the commencement of proceedings, and whether the defendant can obtain a fair trial that does not constitute an abuse of process, are two completely distinct issues.
The defendant must have made adequate inquires and must not be unable to meet the case due to its own neglect or default. These two criteria must be met for a permanent stay of proceedings to be granted.
The Court found that the circumstances are so exceptional as to require an order that the plaintiff’s claims of direct liability and vicarious liability be permanently stayed. This is in part due to the fact that the events occurred over 40 years ago, and that people in key positions to give evidence were unable to do so. This meant that the defendant could not defend any claims against them, and a permanent was granted.
This article was prepared with the assistance of Issac Simpson.
For many people, their main residence will be their major asset. How that asset is owned can make a significant difference to the property structure for individuals. If two or more people are purchasing a property, they must elect a form of ownership. There are three options:
If multiple owners are joint tenants, then the principle known as the ‘right of survivorship’ will apply. If a joint owner passes away the property is automatically transferred to the surviving owner or owners. This is the most common form of ownership for couples purchasing a main residence.
If multiple owners purchase a property as tenants in common, then upon the passing of one owner, that owner’s share is bequeathed to a person under their Will. There are potential tax minimisation strategies in owning an investment property as tenants in common in unequal shares. If you are considering a property as an investment we recommend speaking to an accountant or financial planner, and a lawyer in relation to your succession planning.
The type of ownership can also have tax implications for dealing with the property, as can changing from one type of ownership to another in some circumstances. Understanding how a property is owned, and the consequences of that type of ownership, is vital to any sound asset structure and succession planning.
Generally speaking, a property was only subject to Land Tax if it was used as an investment Property. From 1 July 2018, Land Tax has been payable on a property unless it is used as your ‘principal place of residence, even if the property is vacant’.
Land Tax is assessed on a quarterly basis. If the property was not your principal place of residence on the first day of the relevant quarter, land tax is payable for the entire quarter. If you cease using the property as your principal place of residence during a quarter, the ACT Revenue Office will grant an exemption for the quarter that immediately follows, but Land Tax will apply from any subsequent quarter for which the property is not your principal place of residence.
The registered Owner must notify the ACT Revenue Office within 30 days of your property no longer being used as your principal place of residence. Notification can be completed online:
https://www.revenue.act.gov.au/self-assessment-tools-and-forms/forms/land-tax-notification
When selling your property, consideration should be given to the anticipated settlement date. If you are no longer using your property as your principal place of residence and settlement is scheduled for the second full quarter after you have vacated (or settlement is delayed into the second quarter) you may be liable for any assessed land tax for the second quarter.
You should discuss your land tax obligations with your solicitor/conveyancer before marketing your property for sale. Your Solicitor/Conveyancer could ensure if you are liable for Land Tax, the buyer will reimburse you for part of these costs at the time of settlement. However, if the Buyer is a live in owner, they will be exempt from Land Tax and may request that the Contract reflects no adjustment for Land Tax, then you as the seller would be liable for the full quarter without a refund.
For further information please visit the ACT Revenue Office Website at https://www.revenue.act.gov.au/land-tax
On 5 July 2023, the NSW Supreme Court ordered that the convicted paedophile and former CEO of Bega Cheese, Maurice Van Ryn, pay $1,416,829.85 in compensation for historical sexual abuse perpetrated against one of his victims.
The Plaintiff, now 27 years old, sought damages for the psychological injury he has suffered as a result of the abuse perpetrated against him by Van Ryn when he was a child.
The abuse did not occur in an institutional setting and the claim was brought against Van Ryn as an individual.
Though Van Ryn was present via audiovisual link for the hearing, his defence was withdrawn, and the claim went undefended. The Court had to assess an appropriate amount of damages.
Justice Chen of the NSW Supreme Court awarded Mr Van Ryn to pay $1,416,829.85 in damages.
Broken down as follows:
It is important to remember that claims can be brought against an individual, but expert advice is required to consider whether a judgment can be satisfied.
Chamberlains Law Firm represents clients for historical sexual abuse claims against both institutions and individuals. The hope in bringing a claim for childhood historical abuse is to hold the individual or institution accountable and provide some financial compensation to the survivor for the harm caused. Please get in touch with our experienced team in this area for a confidential no-obligation initial chat.
In the recent decision of Perkins v Carey [2023] NSWSC 210 the Supreme Court of New South Wales considered the circumstances where independent trustees might be appointed to sell a property when the property’s co-owners couldn’t get along. The facts illustrate the importance of getting a co-ownership agreement in writing rather than risking leaving the matter in the Court’s hands.
From its purchase in 2010 the Plaintiff and the Defendant were registered 50-50 co-owners of a warehouse in Western Sydney. The Plaintiff was the Defendant’s parent. The Plaintff had borrowed the money to buy the property. The Defendant operated a business from the property until 2012 when it become non-viable.
From 2017 the property was leased with all rental proceeds being paid to the Defendant. The Plaintiff (who was suffering from Alzheimer’s and needed a representative) commenced Court proceedings seeking orders that the Defendant held their 50% share for them, that s66G trustees be appointed, and that the Defendant repay 50% of the rental proceeds they had received.
By way of background the Defendant’s father – who was also the Plaintiff’s former spouse – died in 1990. The estate passed unequally, and in large part to the Defendant’s siblings (with none to the Plaintiff). The Defendant suggested this unequal distribution was what motivate the Plaintiff to buy the warehouse as a gift for them, at least in part.
There was a difficult, however, as there was very little admissible evidence for the Court to consider. The Defendant said that the Plaintiff had “always” said they would bequeath the property to the Defendant in their will. This was not accepted by the Court.
Over the years the Defendant had brought various investment opportunities to the Plaintiff, which they sometimes invested in, including (unsuccessfully) a Kenyan gold mine. Various letters prepared by the Plaintiff were tendered. Ultimately these did not assist due to uncertainty about the Plaintiff’s mental capacity at the time they were prepared. The Plaintiff was unable to demonstrate that the Defendant held their 50% share on trust for them.
The Court considered, on the balance of probabilities, it was more likely that the Plaintiff intended to assist the Defendant by purchasing the property and making him 50% owner. While other possibilities might arise, the Court considered that: “(t)here is simply a dearth of evidence and speculation does not assist”.
The Defendant said that the Plaintiff had gifted them the rental income from 2017 to 2022. This was not accepted. The Plaintiff was in a difficult financial position, suffering from Alzheimer’s, and a number of requests were made for the Plaintiff’s share of the rent. This stood in the way of the Court finding the rent was gifted to the Defendant. It was ordered that the Defendant had to pay to the Plaintiff 50% of the rent they had collected.
The Plaintiff sought appointment of s66G trustees. The Defendant resisted on irrelevant bases. The Court noted hardship or unfairness was not a barrier and so appointed the s66G trustees. Regarding costs – s66G costs are normally paid out of the trust corpus. However, noting the Plaintiff succeeded in their rental income claim and failed in their resulting trust claim, the Court ordered that only 50% of their costs be paid from the proceeds of the property’s sale. The complexity and expense of this matter shows the value of obtaining expert advice before entering into a co-ownership arrangement.
Seeking leave to bring a “derivative suit” is a mechanism that shareholders of a company can use when they consider the company they own shares in is improperly failing to bring a claim. In the decision of Tydeman v Asgard Group Pty Ltd [2023] FCA 486, some shareholders and directors of a company brought an application in curious circumstances.
In the end the Court refused to grant the plaintiffs leave to bring their “derivative suit” noting that the reason the company was not bringing the claim itself was actually the plaintiffs’ fault. A brief summary of the intriguing facts of this case is as follows:
The Plaintiffs (a parent and their child) were the sole directors and only shareholders of the Defendant company. The Defendant was trustee of a self-managed superannuation fund, and the Plaintiffs were the fund’s beneficiaries.
The Plaintiffs, proceeding without legal advice, sought leave to cause the Defendant to sue for what the Plaintiffs alleged was trust property: shares.
The Plaintiffs said FormerTCo, a former trustee of the SMSF, owned shares in OtherCo; that FormerTCo became deregistered; and the shares (which the Plaintiffs said were property of the SMSF) were unlawfully bought back by OtherCo.
The evidence regarding the alleged buy-back was unclear and included heavy redactions.
In 2016 FormerTCo resigned as trustee of the SMSF and was later deregistered. Following this, the Plaintiffs appointed themselves trustees. In 2022 they retired as trustees and appointed the Defendant.
The Court was left to consider the criteria for bringing a derivative suit set out at s237 of the Corporations Act 2001 (Cth).
Regarding s237(2)(a): the Court found the Defendant would not bring the suit, because the Plaintiffs refused to cause it to do so.
Regarding s237(2)(b): the Court found Plaintiffs’ application was not brought in good faith. It was the Plaintiffs’ conduct that prevented the Defendant from bringing the application.
Regarding s237(2)(c): the Court considered it was not in the Defendant’s best interests that leave be granted as the Plaintiffs’ proposed indemnity was insufficient, and the prospects of the derivative suit succeeding were poor.
Regarding s237(2)(d): the Court found there was “little more than bare assertion” to suggest the buyback was unlawful or improper, but the evidence did disclose a serious question to be tried.
The facts were the subject of twelve (an unusually high quantity) other related pieces of litigation over the years from 2013.
The Plaintiffs’ heavily redacted evidence and failure to disclose apparently relevant matters traversed in the other litigation left the Court in a state of “considerable disquiet” about whether the entire position had been disclosed by the Plaintiffs.
Noting a number of criteria for leave had not been satisfied, leave to bring the derivative action was refused. The Plaintiffs’ application failed.
This case illustrates that in order to meet the criteria required to bring a derivative suit, each of the requirements set out in the Corporations Act 2001 (Cth) must be complied with. Failure to do so will put at risk any chance of success and the likelihood of a costs order being made against the applicant.